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DELEGATE BENNETT: Mr. Chairman
and ladies and gentlemen of the Conven-
tion: I have introduced this pro forma
amendment in order that I and perhaps
others may wish to explain their views with
regard to the meaning of the freedom of
religion declaration.
I do not wish to provoke controversy or
divisiveness here in this Convention which
has so far succeeded in maintaining an at-
mosphere of good will and understanding.
I do not think, however, that we can be
true to our trust and leave a question of
such surpassing importance without an op-
portunity to discuss it.
It is, as you know, on the controversial
issue of separation of church and state on
which the Constitution and the Convention
of New York foundered. It was a question
of prime importance before the legislature
in Florida when they were in the process
of reviewing their Constitution. It has been
the major issue in Rhode Island, and like-
wise in Michigan, and it was, as all of you
know, the paramount issue of the Conven-
tion of 1787 when our Constitution was
adopted.
To refresh your recollection, you will re-
member that Madison, who, incidentally,
was the son of a minister himself, spent ten
years of his life fighting against Patrick
Henry and the Virginia establishment for
absolute separation of church and state.
He wanted what he called a "wall of sepa-
ration", between church and state, and
Jefferson agreed with him.
He nearly lost the battle in Virginia
when the assessment bill was passed. This
was a measure, as you recall, which levied
taxes and which was nothing less than the
support of religion.
He won partly by strategy and partly by
his historic and memorial remonstrance
against any aid whatsoever to church. "Not
even three pence should be granted by the
State to any church," Madison said.
Now we are trying to reach an under-
standing of what Madison's famous phrase
regarding establishment of church really
means. The report of the Committee I feel
is quite skimpy on this subject, and it con-
tents itself largely with a brief quotation
from the Everson case and a citation of a
few other cases. It behooves us, I think, to
take into account the warning of the Mary-
land Court of Appeals in the Horace Mann
case, when it said this:
"The problem to be considered and solved
when the first amendment was proposed
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was not one of hazy or comparative insig-
nificance, but was one of blunt and stark
reality which had perplexed and plagued
the nations of civilization for 14 centuries,
and during that long period of the union of
church and state the government of man
has produced neither peace on earth nor
good will to men."
Now, I take it that we cannot possibly
solve here all of the complicated problems
relating to separation of church and State.
There are too many issues involved, too
many Supreme Court decisions to be taken
into account.
We cannot say how far we may go here
with regard to the authority of the State
to authorize and approve child benefit pro-
grams, release time programs, the extent
of state aid to school busing, scholarship
aid, text book allowances for parochial and
private schools, assistance for educationally
deprived children who are in private
schools, nor can we decide finally what con-
tributions can be made to hospitals, nurs-
ing homes, orphanages and other church-
run institutions.
The Supreme Court of the United States
is still struggling with these issues, as is
the Congress in the pending education bill.
I take it the Congress very gleefully has
passed the buck to the Supreme Court in
authorizing a taxpayer's suit under the ed-
ucation bill.
The one thing, however, that stands out
in the Maryland Court was that the Horace
Mann case attempted to give us the mean-
ing of the establishment clause as applied
to aid to education. It said there was great
doubt about it. They said that no absolute
guidelines may be derived from past de-
cisions.
Therefore, I am convinced we ought to
undertake to put into exact phrases just
how far we can go in granting aid to
denomination schools or institutions.
While we cannot do this here on this
floor at this time, we can try to be specific
by our intentions. What do we intend?
What does this Convention intend to be the
meaning of those words?
One of the statements that greatly in-
fluenced me in this regard was made by
Myer Eisenberg, the attorney for the Jew-
ish Community Council of Washington,
D. C.
He said this: "We, the Community Coun-
cil, read the first amendment and its pro-
posed Maryland analogue to bar, that is to
say to outlaw, the state payments or aid to
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